Date: 19990816
Docket: T-290-99
BETWEEN:
EDWIN PEARSON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
RICHARD A.C.J.:
PROCEEDINGS
| [1] This is an appeal by the plaintiff of an order of Mr. Peter A. K. Giles, Associate Senior Prothonotary, pursuant to Rule 51 of the Federal Court Rules, 1998. |
| [2] By order dated April 12, 1999, Mr. Giles denied the defendant"s motion for an order striking the statement of claim or transferring the proceeding to the courts of Quebec, but granted the defendant"s alternative remedy for an order staying the action in this Court until such time as parallel criminal proceedings ongoing in the Province of Quebec are finally resolved. |
| [3] By notice of motion dated 20 April 1999, the plaintiff appealed the decision of the Prothonotary and requesting: |
| a judgment and Order setting aside or lifting the stay of proceedings, ordered by Mr. P.A.K. Giles, Associate Senior Prothonotary, orally on April 12 1999. |
| [4] The defendant also appealed the order of Prothonotary requesting: |
| an Order setting aside that aspect of the order of Giles, A.S.P. which dismissed the Crown"s motion to strike this action as an abuse of process |
| an Order striking out the Statement of Claim and dismissing this action as an abuse of process |
| [5] The defendant"s motion to strike and dismiss was adjourned sine die pending disposition of the plaintiff"s appeal. |
| [6] In the alternative, the defendant requested an additional 45 days to file and serve its statement of defence if the appeal was allowed. |
BACKGROUND
| [7] The plaintiff was tried in Montreal by a court composed of a judge and jury. The indictment contained five counts. After the jury found him guilty on counts 1 to 4 of the indictment and acquitted him on count 5, the plaintiff moved for a stay of proceedings on the ground of entrapment. The trial judge concluded that the defence of entrapment was not made out. He, therefore, dismissed the appellant"s motion, confirmed the jury"s verdicts, and imposed sentences of time served on counts 1 and 2, and concurrent terms of one and four years, respectively, on counts 3 and 4. |
| [8] The plaintiff appealed the trial judge"s decision to the Quebec Court of Appeal, which affirmed the verdicts of the jury but overruled the trial judge"s decision. The application for a stay of proceedings was dismissed and a new hearing ordered on the entrapment issue and the convictions as well as the sentence were vacated. |
| [9] The appeal was based on the non-disclosure, to the accused by the defendant"s servants, of material pertaining to an informant who had introduced the plaintiff to an undercover agent in Montreal, on June 27 1989. The Court of Appeal was of the view that this lack of information had impaired the accused"s decision not to call the informant as a witness at the entrapment hearing. |
| [10] The plaintiff appealed the decision of the Quebec Court of Appeal to the Supreme Court of Canada. The Supreme Court rendered its judgment on December 9, 1998. The Court of Appeal"s decision was upheld. The appeal was dismissed and the decision of the Quebec Court of Appeal confirming the verdict and ordering a new hearing on the issue of entrapment was confirmed. |
| [11] A second trial was held before Boilard J., of the Quebec Superior Court. Once again, by judgment rendered on November 11, 1994, the plaintiff"s motion for a stay of proceedings based on entrapment was dismissed. The plaintiff appealed that judgment to the Quebec Court of Appeal, raising 24 grounds on appeal. That appeal is still pending. |
| [12] On February 24, 1999, the plaintiff commenced an action in this Court against the defendant, based on the actions of her servants, seeking compensatory damages, general damages, exemplary damages and punitive damages for a total of $13,000,000.00. Essentially, this claim is based on the known and willful abuse of process and malicious violations of the plaintiff"s Charter rights by the Crown and her officers, servant and agents in the criminal prosecution before the Quebec Superior Court. |
| [13] As counsel for the defendant noted, the notice of appeal on questions of law, filed by the plaintiff before the Quebec Court of Appeal on 16 November 1994, raised 24 grounds of appeal. The defendant summarized the relevant issues raised by the plaintiff in that appeal: |
| (1) The crown unlawfully edited documents remitted to the defence under discovery demand, depriving the plaintiff of a fair trial. |
| (2) The police acted with mala fides, with the sole and unique motive to punish and imprison the plaintiff, for a lengthy period of time. |
| (3) The Crown suppressed evidence and knowingly tendered perjured testimony. |
| (4) The Crown knowingly and wilfully misled the defence and the trial judge. |
| (5) The plaintiff was denied his right to a fair trial under section 11(d) of the Charter and deprived of his rights, as guaranteed by section 7 of the Charter. |
| [14] In this action, the plaintiff relies on four grounds in support of his claim for damages: |
| (1) That the defendant"s agents, servant and officers, did by acts and omissions done knowingly, willfully, maliciously and with malice aforethought, [...] give false evidence that was material to the issues under inquiry, this while giving evidence under Oath at the plaintiff"s trial and furthermore they did submit fraudulent document before the trial Court with the unconstitutional objective of depriving the plaintiff of his security and liberty rights and a fair trial, contrary to those rights as guaranteed by the Charter of Rights and Freedoms , ss. 7 and 11(d), Constitution Act 1982, Part 1. |
| (2) That the defendant"s agents, servant and officers, did by acts and omissions done knowingly, willfully, maliciously and with malice aforethought deprive the plaintiff of his security and his liberty rights, Charter of Rights and Freedoms , s. 7, and did deprive plaintiff of his right to a fair trial, Charter of Rights and Freedoms, s. 7, by committing the immediate above stated perjury (paragraph 15) and by the tendering of fraudulent documents during the plaintiff"s trial on the issue of guilt or innocence. |
| (3) That the defendant"s agents, servant and officers, did by acts and omissions done knowingly, willfully, maliciously and with malice aforethought bring about the conviction and imprisonment of the plaintiff and deprive the plaintiff of his security and liberty rights by giving of perjured evidence in a judicial proceeding in respect of material matters that were, in issue before the Quebec Court of Appeal |
| (4) That the defendant"s agents, servant and officers, did by acts and omissions done willfully and knowingly deprive the plaintiff of a fair trial before the Quebec Superior Court contrary to Charter of Rights and Freedoms , s. 11(d), by disregarding their obligation to disclose to the plaintiff documents that were material and necessary to a fair trial of the issue of guilt or innocence and by their suppression of same until September and November 1994. |
Parties"submissions
| [15] The plaintiff contends that in order to obtain a stay of proceedings, the defendant must show: (1) that there is a risk of imminent adjudication in two forums of the identical issues, (2) that it is in the interest of justice, (3) that it would not be unjust to the plaintiff, (4) that this case was the clearest of cases for a stay, or (5) that to allow the matter to proceed the defendants would suffer prejudice or injustice. He submits that none of these requirements have been met. |
| [16] The plaintiff contends that it is wholly unnecessary for the Quebec Court of Appeal to deal with any of the issues raised in his claim for damages before this Court. |
| [17] The defendant contends that the matters at issue in the plaintiff"s statement of claim are currently pending before the Quebec Court of Appeal; therefore, the current proceedings before the Court ought to be stayed in order to avoid the risk of conflicting adjudication and it is in the interest of justice to do so. |
Applicable statutory provision
| [18] Section 50 of the Federal Court Act, R.S.C., 1985, c. F-7, reads: |
| 50. (1) The Court may, in its discretion, stay proceedings in any cause or matter,
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
(2) The Court shall, on the application of the Attorney General of Canada, stay proceedings in any cause or matter in respect of a claim against the Crown if it appears that the claimant has an action or proceeding in respect of the same claim pending in any other court against a person who, at the time when the cause of action alleged in the action or proceeding arose, was, in respect thereof, acting so as to engage the liability of the Crown.
(3) Any stay ordered under this section may subsequently be lifted in the discretion of the Court.
|
50. (1) La Cour a le pouvoir discrétionnaire de suspendre les procédures dans toute affaire_:
a) au motif que la demande est en instance devant un autre tribunal;
b) lorsque, pour quelque autre raison, l'intérêt de la justice l'exige.
(2) Sur demande du procureur général du Canada, la Cour suspend les procédures dans toute affaire relative à une demande contre la Couronne s'il apparaît que le demandeur a intenté, devant un autre tribunal, une procédure relative à la même demande contre une personne qui, à la survenance du fait générateur allégué dans la procédure, agissait en l'occurrence de telle façon qu'elle engageait la responsabilité de la Couronne.
(3) La suspension peut ultérieurement être levée à l'appréciation de la Cour.
|
Standard of review
| [19] The standard of review of a decision to grant or not a stay of proceedings was expressed as follows by the Supreme Court of Canada in Tobiass1: |
| A stay of proceedings is a discretionary remedy. Accordingly, an appellate court may not lightly interfere with a trial judge's decision to grant or not to grant a stay. The situation here is just as our colleague Gonthier J. described it in Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375: |
| [A]n appellate court will be justified in intervening in a trial judge's exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice. |
Legal principles
| [20] The phrase "interest of justice" involves a consideration of many things and not only the interest of a party to a judicial proceeding. |
| [21] In Tobiass, the Supreme Court of Canada referred to paragraph 50(1)(b) of the Federal Court Act: |
| Though Cullen J. derived his power to enter a stay of proceedings from s. 50(1)(b) of the Federal Court Act and not from the Charter or the common law, the same principles that govern stays of proceedings under the latter heads of power apply equally well here. The "interest of justice" referred to in s. 50(1)(b) of the Federal Court Act is not fundamentally different from the concerns that animate the jurisprudence developed under s. 24(2) of the Charter, although the context in which s. 50(1)(b) operates may be different. |
| Most often a stay of proceedings is sought to remedy some unfairness to the individual that has resulted from state misconduct. However, there is a "residual category" of cases in which a stay may be warranted. L'Heureux-Dubé J. described it this way, in R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 73: |
| This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. |
| The residual category, it bears noting, is a small one. In the vast majority of cases, the concern will be about the fairness of the trial. |
| [22] In determining what is in the interest of justice, the court may be called upon to examine diverse circumstances and, accordingly, a broad meaning must be given to the phrase. |
| [23] Each application for a stay must be decided on its own facts. One must not only evaluate and balance the interests of the parties but also the integrity of the judicial process. |
| [24] In Harry2, Joyal J. stated: |
| In the face of a motion to stay proceedings, a court must necessarily take account of current circumstances. It must as well make certain assumptions. It must assume that the criminal proceedings are continuing in a relatively expeditious manner and will be expeditiously concluded. It must also assume that some judicial findings will be made in those proceedings which will either settle the issues or at least provide the grounds for ultimate resolution. ... |
| [25] A similar question arose before the Ontario Court of Justice, General Division3. In that case, Ground J., who followed Joyal J., stated: |
| It appears to me that, where the right of the accused to a fair trial is not the issue, the court in considering whether a stay of civil proceedings ought to be granted might make reference to decisions where one civil action was stayed pending the disposition of another civil action and where the courts have applied a test of balance of convenience having regard to all the pertinent factors. |
| [26] Having regard to all the evidence, Ground J. concluded: |
| In view of the considerable overlap between the issues in these actions and the criminal proceedings, the questions of credibility and causation which may be resolved in the criminal proceedings and the lack of prejudice to the plaintiffs in staying the civil actions, I am of the view that the actions should be stayed pending the completion of the criminal proceedings against Peter Fallon, Sr., Peter Fallon, Jr. and Alberto DoCouto. |
| [27] This decision was reversed in part by the Ontario Court of Appeal. However, with respect to the threshold to be met, in order to obtain a stay of proceedings, the Ontario Court of Appeal4 stated: |
| The cases are clear that the threshold test to be met before a stay is granted is high. The mere fact that criminal proceedings are pending at the same time as civil proceedings is not sufficient ground for a stay of the latter: Stickney v. Trusz, supra. Even the potential disclosure through the civil proceedings of the nature of the accused's defence or of self- incriminating evidence is not necessarily exceptional: see Belanger v. Caughell, supra; Stickney v. Trusz, supra; Seaway Trust Co. v. Kilderkin Investments Ltd., supra. This high threshold test should not be relaxed merely became it is the Crown that requests the stay. An applicant, whether it is the Crown or the accused, must meet the same burden of proving extraordinary or exceptional circumstances. The test is not on a balance of convenience for the Crown and something higher for the accused. To the extent that the motions court judge held that it is, he erred. |
|
| [28] With regard to the stay, the Ontario Court of Appeal concluded: |
| In our opinion, neither Nash v. Ontario nor Nash v. CIBC Trust Corp. involve circumstances so extraordinary or exceptional as to warrant the stays of these actions. The Nash appellants and CIBC Trust are not parties in the pending criminal proceedings and the issues involved in these two actions are quite distinct from those the criminal charges raise. Falloncrest Financial Corp. v. Ontario, on the other hand, is different. The Falloncrest appellants' allegations are such that their civil claims would have little merit if the Crown successfully convicts the Fallons and DoCouto. The civil action is the reciprocal of the criminal prosecution. Furthermore, the Falloncrest appellants' motivation for instituting their action against the Crown, shortly after their committal for trial, is suspect. The appearance is that their objective in maintaining the civil action is to interfere with the criminal process and to have pre-trial access to Crown witnesses beyond that afforded on the preliminary hearing. We would not interfere with the exercise of the trial judge's discretion in this instance where he stayed these civil proceedings until the conclusion of the prosecutions. |
| [29] In Biologische Heilmittel Heel GmbH v. Acti-Form5, I analysed the jurisprudence of our Court under section 50 of the Federal Court Act: |
| [para12] In Varnam v. Minister of National Health & Welfare, [See Note 3 below] McNair J. stated at p. 36: |
| A stay of proceedings is never granted as a matter of course. The matter is one calling for the exercise of a judicial discretion in determining whether a stay should be ordered in the particular circumstances of the case. The power to stay should be exercised sparingly and a stay will only be ordered in the clearest cases. In order to justify a stay of proceedings two conditions must be met, one positive and the other negative: (a) the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way; and (b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on the defendant. Expense and inconvenience to a party or the prospect of the proceedings being abortive in the event of a successful appeal are not sufficient special circumstances in themselves for the granting of a stay. |
|
| [30] This case is unlike Biologische Heilmittel Heel GmbH, where there was a civil action for passing off in the provincial superior court and an action for trade-mark infringement before this Court, and, where each case constituted a separate cause of action. In the present case, as in the Nash6 case, the proceedings are linked: the civil action is the reciprocal of the plaintiff"s defence in the criminal prosecution. The determination of that matter is still pending before the Quebec courts. |
ANALYSIS
| [31] In spite of the fact that the relief sought in an action for damages in this Court is different from the relief sought in the criminal prosecution, the plaintiff is relying essentially on the same grounds in both proceedings and the issue is the same. As I have said, the civil action is the reciprocal of the plaintiff"s defence in the criminal prosecution. |
| [32] The ultimate issue is the plaintiff"s claim that he was deprived of a fair trial before the Quebec Superior Court, contrary to section 11(d) of the Canadian Charter of Rights and Freedoms, by the defendant"s failure to disclose material documents and by the suppression of search documents that were material and necessary to a fair trial on the issue of guilt or innocence. |
| [33] This issue was first raised by the plaintiff in his criminal prosecution before the Quebec courts and it is still pending before the Quebec courts and should first be determined by the Quebec Superior Court and the Quebec Court of Appeal. |
| [34] In view of the considerable overlap between the issue in this action and the criminal proceeding, an issue which may be resolved in the criminal proceeding, and in the view of the lack of prejudice to the plaintiffs in staying the civil action, the action before this Court should be stayed, pending the completion of the criminal proceeding involving the plaintiff in the Quebec courts. |
CONCLUSION
| [35] I conclude, in the circumstances, that the Prothonotary properly exercised his discretion in staying this action. |
| [36] Therefore, this appeal is dismissed |
| [37] With respect to the defendant"s statement of defence, if I had allowed the appeal, I would have granted the defendant 45 days from the date of my order to file and serve its statement of defence. |
____________________________
Associate Chief Justice
Ottawa, Ontario
August 16, 1999
__________________
1 Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.R.C. 391.
2 Harry v. Canada (1987), 17 F.T.R. 236 (T.D.).
3 Falloncrest Financial Corp. v. Ontario; Nash v. Ontario, [1995] O.J. No. 1931. (Ont. Gen. Div.).
4 Nash et al. v. Ontario, [1995] O.J. No. 4043 (Ont. C.A.)
5 Biologische Heilmittel Heel GmbH v. Acti-Form (1995), 103 F.T.R. 212.(T.D.)
6 Supra, note 4.